State of Kerala v. S. Krishna Iyer

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940** **AS.No. 975 of 1998** **AGAINST THE JUDGMENT & DECREE DATED 24-03-1998 IN OS 502/1995 of SUB COURT, PALAKKAD** ## **APPELLANTS/DEFENDANTS** **STATE OF KERALA REP. BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIATE, THIRUVANANTHAPURAM** **BY ADV.SYAMJIRAM, GOVERNMENT PLEADER** ## **RESPONDENT/PLAINTIFF** **S.KRISHNA IYER, S/O.SUBRAMANIA IYER, AGED 68 YEARS (DIED) RESIDING AT SABARIGIRI, VINAYAKA NAGAR, THARAKKAD, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT** ## **ADDL.R2 TO R5 IMPLEADED** - **ADDL.R2 S.PONNAMMAL, W/O.S.KRISHNA IYER, SABARIGIRI, VINAYAKA NAGAR, THARAKKAD, KOPPAM DESOM, PALAKKAD** - **ADDL.R3 GEETHA BALRAM, D/O.S.KRISHNA IYER, RESIDING AT 657, ASIAD VILLAGE, KHEL GAON MARG, NEW DELHI** - **ADDL.R4 KALA RAJANGOM, D/O.S.KRISHNA IYER, RESIDING AT C-68, KENDRIYA VIHAR, VELAPPANCHAVADI, POONAMALLY HIGH ROAD, CHENNAI - 600 077** - **ADDL.R5 K.SUBRAMANY, S/O.KRISHNA IYER, SABARIGIRI, VINAYAKA NAGAR, THARAKKAD, KOPPAM DESOM, PALAKKAD** - **[THE LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 2 TO 5 VIDE ORDER DATED 17.2.2012 IN IA 3692/2004]** **BY ADVS. SRI.T.C.SURESH MENON** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 05-07-2018, ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J.** ## **------------------------------A.S.No.975 of 1998 & Cross Objection ---------------------------------------------Dated this the 05[th] day of July, 2018** ## **JUDGMENT** This appeal is filed by the State of Kerala. Judgment and decree under challenge is one passed by the Court of Subordinate judge, Palakkad in O.S.No.502 of 1995. The original respondent, who died subsequently and his legal representatives are impleaded as additional respondents 2 to 5, was the plaintiff in the suit. 2. Plaint averments in brief are as follows: Plaintiff retired from the service of the State as a Superintending Engineer, Siruvani Project Circle, Palakkad, on 31.12.1981. At the time of his retirement, three enquiries were pending against him. First one related to National Highway-47, Kilometer 232 to 238/4 commenced in the year 1978 and finalised on 15.10.1984. Second enquiry related to National Highway-47 reach Kilometer 182 to 186. The enquiry commenced in 1979 and finalised on 14.6.1983. Third enquiry is **AS No.975/1998** **2** relating to flood damage to Kangayam reservoir and the same was commenced in the year 1979 and finalised only on 30.4.1987. It is the allegation that despite taking a long time, the State and its Officers did not finalise the enquiry before retirement of the plaintiff. It was deliberately dragged, delayed and culminated only after his retirement. The plaintiff could not get pension and other benefits as they were withheld by the Government. Only a provisional pension was sanctioned to him. His right to commutation of pension was also withheld by the defendant on the ground that enquiries were pending. According to the plaintiff's contentions, the defendant is bound to grant full pension, gratuity and other benefits including the commutation facility to the plaintiff immediately after completion of the enquiries. In order to harass the plaintiff, it was delayed. The plaintiff had to undertake journeys to Thiruvananthapuram for making representations to the Chief Secretary and the Secretary concerned. He had to expend huge amounts in pursuing his remedies to get his lawful claims sanctioned. It is therefore the contention of the plaintiff that he is entitled to get a total sum of Rs.2,91,000/- with 18% interest. **AS No.975/1998** **3** 3. The State filed a written statement contending that three enquiries were pending against the plaintiff and three criminal prosecutions were also pending against him. As per Rule 3A of Part III of the Kerala Service Rules, only provisional pension could be paid to an officer retiring from service, against whom departmental proceedings were pending. The State in this case has sanctioned provisional pension to the plaintiff. As per Rule III of the Pension (Commutation) Rules, the officer, against whom enquiry is pending at the time of retirement, cannot claim commutation of pension. Cases were also pending before the Enquiry Commissioner and Special Judge, Thrissur against the petitioner under the provisions of the Prevention of Corruption Act. There was no undue delay on the part of the Government. The suit claim is not allowable and hence, the suit is liable to be dismissed. 4. Learned trial Judge, raised proper issues and examined the plaintiff as PW-1. Ext.A1 is the document produced on the side of the plaintiff and Exts.B1 to B7 are the documents produced by the defendant/State. 5. Heard the learned Government Pleader and the **AS No.975/1998** **4** learned counsel appearing for the respondents. 6. Learned Government Pleader submitted, the finding of the court below that the State is liable to pay interest for delayed amount, is legally incorrect. According to him, the Government was justified in withholding the pension and other benefits of the original plaintiff, who was facing both departmental action and criminal case. 7. Per contra, learned counsel for the respondents would contend that action on the part of the Government was without any justification and they are liable to pay compensation as claimed in the plaint. The right of the original plaintiff to commute pension was also unjustly denied by the inordinate delay in completing the departmental action. 8. I shall refer to the relevant provisions for clarity. Rule 3 of Part III of the Kerala Service Rules reads as follows: The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of **AS No.975/1998** **5** grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement: 9. In this Context, Note (3) is also relevant: The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him. 10. On a reading of the above provision, it can be seen that the Government has a right to withhold or withdraw pension or any part of it, whether permanently or for a specified period. If a departmental or judicial proceeding is pending against the employee and if the pensioner is found guilty of grave misconduct or negligence during the period of his service, the Government can exercise such a right. But, Note (3) quoted above shows that the liabilities of an employee should be quantified either before or after his retirement and intimated to him before the retirement, if possible. It is also made clear that such intimation shall be given to the employee after his retirement within a period of three years. In this case, the **AS No.975/1998** **6** learned Sub Judge is right in finding that there is no legal justification for causing inordinate delay in not completing the proceedings even after retirement of the original plaintiff. Out of three departmental enquiries, the last one was completed only on 30.4.1987, i.e., almost six years after the original plaintiff's retirement. It is to be remembered that all the departmental actions were initiated either in 1978 or 1979. 11. Learned trial Judge, after considering the documents produced, correctly held that no evidence was adduced by the defendant/appellant to show that there was any difficulty for them in finalising the enquiries before 31.12.1981, the date of retirement of the original plaintiff. In fact, no oral evidence was adduced by the defendant to show any reason for the delay caused in finalising the departmental proceedings. The pensionery benefits were disbursed only on 12.3.1993, consuming further time after finalising the departmental proceedings. As per Rule 3(a) of Part III of the Kerala Service Rules, the plaintiff was eligible for provisional pension only at the time of his retirement. But, in the absence of any proper explanation for not finalising the proceedings within the time **AS No.975/1998** **7** stipulated in the Rules concerned, I find that the reasoning of the trial Judge is legally correct that the Government is bound to pay the balance amount payable to the original plaintiff with interest. 12. Relying on a Supreme Court decision reported in **State of Kerala v. Padmanabhan Nair [1985 KLT 86]** a Division Bench of this Court, in **State of Kerala v. Antony [1994 (2) KLT 314]** , held in paragraph 6 as follows: Payment of pension and gratuity cannot be considered as any bounty to be distributed by the Government to its employees on their retirement. It is really the well deserved amount due to them after their long innings in service. Retired employees cannot be relegated to a secondary position and ignored. Amounts due to them cannot be withheld without valid reason. In a case where there is no justification for the withholding of gratuity and pension amounts to the employees the Supreme Court held that the delay in settlement and disbursement thereof must be visited with penalty of payment of interest at the current market rate (State of Kerala v. Padmanabhan Nair, 1985 KLT 86). As the amount was withheld for no fault of his, interest on the said amount cannot be denied to the respondent. In view of the finding that respondent **AS No.975/1998** **8** was wrongly denied of the D.C.R.G. amount, interest awarded by the learned Judge cannot be assailed. The same principle has been stated in **Balakrishna Menoky v. Director of Municipal Administration [1991 (2) KLT 170]** by another Division Bench. 13. The respondents have filed a cross objection against the decree passed by the trial court wherein the claim for incidental expenses, like expenses for travel, food, etc said to be expended by the original plaintiff for meeting the Chief Secretary and other Government Officers. It cannot be allowed in the light of the fact that no reliable evidence was adduced by the original plaintiff and no document was produced to substantiate the claim. Therefore, I find no merit in the cross objection. 14. After hearing the learned Government Pleader and the learned counsel for the respondents, I am of the view that the court below has correctly calculated the amounts payable to the original plaintiff and lawfully decreed the suit for Rs.26,167.67 with interest at the rate of 12% per annum from the date of suit till the date of decree and 6% thereafter till the **AS No.975/1998** **9** date of realisation of the amount. On a reconsideration of the entire issues with reference to the documents and evidence produced, I find no reason to interfere with the reasoning of the trial Judge. Cross objection is also liable to be dismissed since the trial Judge has stated valid reasons for denying the claim involved in the cross objection. The appeal and cross objection are hereby dismissed. All pending interlocutory applications will stand dismissed. JV Sd/- **A. HARIPRASAD JUDGE**